FILED JULY 6, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 32867-8-111 ) Respondent, ) ) v. ) ) JUAN ANDRES RODRIGUEZ, ) UNPUBLISHED OPINION ) . Appellant. )
LAWRENCE-BERREY, J. - Juan Rodriguez appeals his convictions for attempted
first degree murder and first degree assault. He argues the trial court committed
reversible error in three respects: (1) when it admitted expert gang testimony, (2) when it
admitted his statements to jail staff during booking that he was affiliated with the Surefio
gang, and (3) when it assessed discretionary legal financial obligations (LFOs) against
him. We conclude the trial court did not err in admitting expert gang testimony, the error
in admitting Rodriguez's booking statements was harmless beyond a reasonable doubt,
and we decline to review Rodriguez's unpreserved LFO argument. No. 32867-8-111 State v. Rodriguez
FACTS
On June 24, 2012, Mario Cervantes, Jr., was driving his father's Cadillac Escalade
in Toppenish, Washington. He stopped to give his friend Angel Arredondo a ride from a
barbecue to Arredondo's house. As they were driving past Toppenish Community
Hospital, a Nissan sedan pulled up on the left side of the Escalade. A passenger in the
Nissan fired several gunshots into the Escalade. One bullet struck Cervantes in his flank
area. Arredondo caught a quick glance of the Nissan and saw two or three people inside
ofit.
The Nissan passed the Escalade and stopped at a stop sign. Cervantes stepped on
the accelerator and rear ended the Nissan. Cervantes then drove around a parking lot to
pick up speed and rammed the Nissan again on the driver's side door, pushing the Nissan
into a nearby house. Cervantes and Arredondo then jumped from the Escalade and ran
toward the nearby hospital. Cervantes went inside the hospital for treatment. He was
wearing a red and black Chicago Bulls jersey, which was later collected as evidence. A
nurse inside the hospital called the police.
Cervantes's father was inside a nearby house and heard the gunfire and the
collision. He went outside and saw his son and Arredondo running toward the hospital.
He also saw two other men running away in the other direction. He recognized the men
2 No. 32867-8-III State v. Rodriguez
as Jesse Reynosa and Willy Joe Sanchez. Jesse Reynosa was the driver of the Nissan.
Cervantes's father also saw Rodriguez pinned between the Nissan and the house.
Officer Derrick Perez arrived at the scene. He peered over the doorframe of the
Nissan and saw Rodriguez, who was injured and appeared to be trapped underneath the
car. Officer Perez told Rodriguez to stay still and wait for an ambulance. After backup
arrived, Officer Perez went to Rodriguez again and saw the barrel of a silver handgun
sticking out from under Rodriguez's leg. Officer Perez drew his weapon and ordered
Rodriguez to come out from under the Nissan. Rodriguez crawled out and Officer Perez
placed him under arrest.
Detective Jaban Brownell arrived and collected the silver revolver, which he found
between the Nissan and the house. He also found a Blackberry cell phone in the Nissan.
He looked at the photos on the cell phone and saw photos of Reynosa, dressed in blue and
flashing gang signs. Rodriguez was not in any of these photos. Detective Brownell
determined that the Nissan was registered to Jesus Reynosa. Law enforcement quickly
found Reynosa and arrested him. Law enforcement did not arrest Sanchez because no
one advised them of his possible involvement in the shooting.
Rodriguez was taken by ambulance to Yakima Regional Medical Center. The
emergency room medical staff removed Rodriguez's clothing, which an officer collected
3 No. 32867-8-III State v. Rodriguez
as evidence. Rodriguez was wearing a blue and white Los Angeles Dodgers jersey. He
was also wearing a blue rosary necklace, another blue necklace, and a blue bracelet.
Rodriguez suffered at least two gashes for which he received stitches. Law enforcement
eventually transported Rodriguez to the Yakima County jail.
During the booking process at the jail, Corporal Theresa Hartley questioned
Rodriguez about potential gang affiliation to ensure he was safely housed away from rival
gang members. She asked Rodriguez ifhe was a Nortefio, and Rodriguez angrily shook
his head. She then asked Rodriguez if he was a Surefio. According to Corporal Hartley,
Rodriguez agreed by nodding his head. Corporal Hartley also completed an interview
form. On this form, she indicated Rodriguez was a Surefio and could not get along with
Nortefios.
A forensic scientist at the Washington State Patrol Crime Laboratory tested the
silver revolver from the scene. She swabbed the revolver and found deoxyribonucleic
acid (DNA) from only one person on it. It was a substantial profile, which probably
indicated the contributor handled the revolver more than briefly. Based on this, the
Toppenish Police Department sent her DNA samples from both Reynosa and Rodriguez.
She tested the samples and determined Rodriguez's DNA matched the sole DNA profile
on the revolver. She excluded Reynosa as a contributor.
4 No. 32867-8-III State v. Rodriguez
The State charged Rodriguez, as a principal or as an accomplice, with attempted
first degree murder, two counts of first degree assault, and alleged that Rodriguez
committed the offenses while armed with a firearm. In addition, the State alleged an
aggravating factor-that Rodriguez committed the crimes to enhance his standing in a
street gang.
Prior to trial, Rodriguez moved to exclude all evidence relating to gang
membership. He also moved to exclude his statement to Corporal Hartley during the
booking process and the interview form. The trial court held a hearing on Rodriguez's
motion. The State gave an overview of the evidence it believed established a nexus
between gang membership and the shooting. The court ruled some gang evidence would
be admissible to give context for why one car of people would suddenly start shooting at
another car of people. The court noted there was some evidence the Nissan's occupants
were Sureftos and the Escalade's occupants were Norteftos. The court further ruled gang
expert testimony would be admissible, but noted this testimony would be limited to
explaining that the gangs were rivals. The court reserved ruling, until it heard Corporal
Hartley's testimony, on whether Rodriguez's booking statements were admissible.
5 No. 32867-8-111 State v. Rodriguez
The court later held a CrR 3.5 hearing to determine if Miranda 1 applied to
Corporal Hartley's booking interview. At the hearing, Corporal Hartley testified her
concern, when she classifies new inmates, is inmate safety. She testified the jail does not
house rival gang members together because they will automatically fight when they see
one another. The court determined Miranda did not apply to the booking interview and
admitted the booking statements.
Trial commenced. The State called Cervantes's father, who testified his son was a
Nortefio gang member. The State called Corporal Hartley, who testified that Rodriguez
admitted he was a Surefio during booking. The trial court also admitted Corporal
Hartley's interview form.
Before the State called its gang expert, Rodriguez renewed his objection to the
admission of expert testimony regarding gang culture. He argued the State had little
evidence the shooting was gang related. The trial court affirmed its earlier ruling that
some expert testimony would help the jury understand why a car of people would be
shooting at another car of people. As evidence the shooting was gang related, the court
cited Rodriguez's blue clothing and jewelry, as well as the testimony that Cervantes was a
Nortefio.
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
6 No. 32867-8-III State v. Rodriguez
The State called Detective Brownell as its gang expert. He testified the two main
gangs in the Toppenish area are the Surefios and Nortefios. He testified about their rivalry
and the motivations for violence within gang culture. He testified gang violence is
motivated in part due to the importance of "respect" in the gang culture, as violent acts
will earn the respect of the person's fellow gang members. Report of Proceedings (RP) at
1021-22.
Detective Brownell further testified about indicators of gang membership, such as
red clothing for Nortefios and blue clothing for Surefios. He testified gang members dress
this way to show allegiance to their gang. He also testified gang members wear sports
apparel, based on both the team's color and the team's geographic location. He
concluded that the totality of the evidence-the red Bulls jersey, the blue Dodgers jersey,
and Rodriguez's blue jewelry-indicated the shooting was gang related.
Rodriguez testified in his defense. He testified he was not a Surefio gang member
and denied he indicated to Corporal Hartley that he was. He testified Reynoso offered
him a ride, he sat in the front passenger seat, and there was a person sitting behind him
that he did not know. According to Rodriguez, who is a monolingual Spanish speaker,
Reynoso and the person in the back began speaking in English excitedly. Reynoso then
pulled up beside the Escalade and the backseat passenger shot into the Escalade several
7 No. 32867-8-III State v. Rodriguez
times. The Escalade rammed into the Nissan, Rodriguez was knocked unconscious, and
awoke soon after in the crumpled Nissan. Rodriguez denied knowing anything about the
revolver prior to the shooting, and denied ever touching the revolver. He also denied
knowing either of the victims.
On cross-examination, the State questioned Rodriguez about a jailhouse telephone
call he made to a friend, Salvador Gutierrez. Rodriguez told Gutierrez to make sure
people knew that if Cervantes and Arredondo testified, "' [T]hings [would] get stirred
up."' RP at 1177. Gutierrez responded, "' Or give a beating."' RP at 1177. To which
Rodriguez laughed, and said, "'Yeah, you understand.'" RP at 1177. Rodriguez
admitted he made the statements. The State then directly confronted Rodriguez: "If
you're not a gang member and not affiliated with a gang, how does any communication to
another gang member not to testify cause them any fear whatsoever?" RP at 1179.
Rodriguez, who had just confirmed that his statement implied Cervantes and Arredondo
would receive a beating if they testified, confusingly answered, "Who was being caused
fear?" RP at 1179.
The jury found Rodriguez guilty as charged. The jury also found that Rodriguez
committed the offenses with a firearm, and that he committed the offenses to enhance his
reputation in a street gang. At sentencing, and despite the jury's street gang finding, the
8 No. 32867-8-111 State v. Rodriguez
trial court elected not to impose the street gang enhancement. The trial court also
determined that one of the assault convictions merged with the first degree attempted
murder conviction.
The trial court sentenced Rodriguez to just over 40 years of incarceration. In
addition, the trial court imposed $1,560 in LFOs, which included a $500 victim
assessment, a $200 criminal filing fee, a $100 DNA collection fee, a $10 sheriffs service
fee, a $250 jury demand fee, and a $500 fee for costs of incarceration. After imposing the
LFOs, the trial court noted Rodriguez had some ability to pay, was healthy, was working
at the time he was arrested, and was able to earn minimal wages while incarcerated.
Rodriguez did not object to the trial court imposing the LFOs.
Rodriguez timely appealed. This court stayed this appeal pending the Washington
State Supreme Court's decision in State v. Deleon, 185 Wn.2d 478, 374 P.3d 95 (2016).
Deleon was decided in May 2016 and this court lifted the stay.
ANALYSIS
A. ADMISSION OF GANG EXPERT TESTIMONY
Rodriguez argues the trial court improperly admitted Detective Brownell's expert
opinion testimony about gang culture. He argues there was an insufficient nexus between
the gang evidence and the charged crimes. He acknowledges some evidence suggested he
9 No. 32867-8-III State v. Rodriguez
and Cervantes belonged to rival gangs, but argues this evidence failed to connect the
crimes with their gang membership.
Evidence of street gang affiliation is admissible in a criminal trial if there is a
nexus between the crime and gang membership. State v. Scott, 151 Wn. App. 520, 521,
213 P .3d 71 (2009). Because gang membership is constitutionally protected under the
First Amendment to the United States Constitution's right of association, there must be a
connection between the crime and the organization before the evidence becomes relevant.
Id. at 526. "Generalized expert testimony on gangs, untethered to the specifics of the
case on trial, is impermissible." State v. Mancilla, 197 Wn. App. 631, 644, 391 P .3d 507
(2017).
ER 404(b) guides the admission of gang evidence. Scott, 151 Wn. App. at 526.
Gang evidence can be admitted under ER 404(b) when a trial court identifies a significant
reason for admitting the evidence and determines that the relevance of the evidence
outweighs any prejudicial impact. Id. at 527. A proper reason for admitting gang expert
testimony is to establish a motive for a crime. Id.; Mancilla, 197 Wn. App. at 644. For
example, it may help explain why a person is attacked by a relative stranger, may show
the connection between codefendants, and may also explain the interactions of the various
parties. Scott, 151 Wn. App. at 527-28.
10 No. 32867-8-III State v. Rodriguez
A trial court properly admits such evidence when there is a connection between the
gang's purposes or values and the offense. Id. at 527. However, when there is no
connection between a defendant's gang affiliation and the charged offense, admission of
the gang evidence is prejudicial error. Id. This court reviews the trial court's decision for
an abuse of discretion. Id.
In Scott, a drug dealer gave his girlfriend Wendy drugs and a handgun. Id. at 522.
The two broke up, and the drug dealer told Wendy he wanted his gun back and also
wanted repayment for the drugs. Id. Wendy did not comply soon enough, so the
defendant and several associates broke into her room in the middle of the night and
stabbed Wendy's new boyfriend. Id.
The State moved in limine to admit evidence that the defendant was a gang
member and that he committed the crimes because Wendy "disrespected" the gang. Id. at
523. The State argued Wendy's disrespect provided both the defendant's intent and his
motive for taking part in the attack. Id. The State asserted its gang expert would testify
to the importance of "respect" in the gang culture and why gang members would respond
to "disrespect" with violence. Id. at 523-24. The trial court admitted the evidence on the
condition it developed as the State anticipated. Id. at 524. However, at trial, the State
never asked its expert about local members of the gang, the place of "respect" in gang
11 No. 32867-8-III State v. Rodriguez
culture, gang response to "disrespect," or any connection between gang membership and
the attack. Id. at 525. The jury convicted the defendant, and he appealed. Id. at 526.
The Scott court held that the gang evidence was admissible to show the motive
behind the attack-.to send a message to Wendy to repay her debts-and that without it,
the attack by three strangers was otherwise unexplainable. Id. at 527. However, the court
noted that while the State's offer of proof established a proper reason for admitting the
gang evidence, the actual testimony at trial failed to prove a connection between gang
affiliation and the crime. Id. at 528. The State did not show any of the defendant's
associates were gang members. Id. The State also failed to provide expert evidence
about the importance of "respect" in the gang culture or that violence was a recognized
response to "disrespect." Id. The court noted that if the State had elicited its anticipated
testimony, there would have been no error. Id. at 528-29. However, because it did not,
the gang evidence was inadmissible under ER 404(b). Id. at 529.
In Mancilla, four defendants shot at a house from their car. Mancilla, 197 Wn.
App. at 638-39. When the police arrived, they saw blue graffiti near the home's entrance.
Id. at 638. The police arrested the four defendants, who had gang tattoos and were
wearing blue clothing. Id. at 639. At trial, the State called a gang expert who testified
about various aspects of gang culture. Id. at 640.
12 No. 32867-8-III State v. Rodriguez
The Mancilla court affirmed the trial court's ruling that admitted the gang expert
testimony. Id. at 646. The court reasoned the expert's gang testimony supported the
State's theory of motive and explained why the defendants targeted the house. Id. at 644.
The court further reasoned the blue graffiti left on the house and the defendants' blue
clothing at the time of arrest provided ample reason to believe the shooting was gang
related. Id. The court determined the expert's testimony "appropriately supplied the jury
with the tools necessary to interpret this evidence and understand the State's theory of the
case." Id.
Here, the trial court properly ruled that some evidence regarding gang culture
would be admissible to prove motive-it gave context for why one car of people would
suddenly start shooting at another car of people. As in Mancilla, Rodriguez's blue jersey
and jewelry, the photos of Reynoso dressed in blue and flashing gang signs, and
Cervantes's red jersey and Nortefio gang membership all gave the State substantial
justification for arguing the shooting was gang related. And, unlike in Scott, the gang
expert's testimony here was tailored to the purpose for its admission and established a
nexus between gang membership and the crimes charged.
Because the State introduced the gang evidence to establish a motive for the
shooting, which the State supported through expert testimony, we conclude the State
13 No. 32867-8-III State v. Rodriguez
established an adequate nexus between the crime and gang membership. The trial court
did not abuse its discretion when it admitted Detective Brownell's limited expert opinion
testimony regarding gang culture.
B. FIFTH AMENDMENT CHALLENGE TO BOOKING STATEMENTS
Rodriguez argues his booking statements to Corporal Hartley-in which he
supposedly admitted he was a Surefio gang member-were obtained involuntarily, and
thus their admission at trial violated the Fifth Amendment. 2 He argues the error was not
harmless beyond a reasonable doubt because the State did not present sufficient
independent evidence of his gang affiliation.
The Fifth Amendment to the United States Constitution provides that a defendant
shall not "be compelled in any criminal case to be a witness against himself." In DeLeon,
our Supreme Court held that a defendant's booking statements to jail staff about his or her
gang affiliation are involuntary. DeLeon, 185 Wn.2d at 487. This is because jail staff ask
these questions so they can protect inmates from violence by housing them separately
2 Rodriguez only sought to suppress these statements at trial on the basis that jail staff failed to give him Miranda warnings. He did not argue the statements were obtained involuntarily. Thus, the trial court never was presented with the issue. However, the State does not contest whether Rodriguez preserved this issue for appeal. It instead concedes Rodriguez's challenge was "properly raised." Br. ofResp't at 1. But even if the State did not concede this point, we could review the issue if the admission of the booking statements constituted manifest constitutional error. RAP
14 No. 32867-8-III State v. Rodriguez
from rival gang members. Id. at 486-87. To avoid being housed with rival gang
members, inmates need to disclose their gang affiliations. Id. at 487. Therefore, because
these statements are obtained involuntarily, the Deleon court held that admitting them at
trial violates a defendant's Fifth Amendment rights. Id.
Here, Rodriguez made statements to Corporal Hartley during the booking process
to ensure his personal safety. The State concedes that under Deleon, these statements
were obtained involuntarily and their admission at trial violated Rodriguez's Fifth
Amendment right against self-incrimination.
Even when constitutional error occurs, reversal is not automatic. Mancilla, 197
Wn. App. at 641. When faced with a constitutional error, appellate courts apply a
harmless error test. Deleon, 185 Wn.2d at 487. Under this test, this court will vacate a
defendant's conviction unless the State can prove the erroneously admitted evidence was
harmless beyond a reasonable doubt. Id. at 487-88. This court must find, beyond a
reasonable doubt, that "' any reasonable jury would have reached the same result, despite
the error.'" Id. at 487 (quoting State v. Aumick, 126 Wn.2d 422, 430, 894 P.2d 1325
(1995)).
2.5(a)(3); State v. Young, 158 Wn. App. 707,718,243 P.3d 172 (2010).
15 No. 32867-8-III State v. Rodriguez
Application of the harmless error analysis to this case is guided by two factually
similar cases: Deleon, 185 Wn.2d 4 78 and Mancilla, 197 Wn. App. 631. In Deleon, the
State charged three defendants with first degree assault for shooting at rival gang
members from their car. Deleon, 185 Wn.2d at 481-82. At trial, the State introduced the
defendants' booking statements, in which they indicated affiliation with the Nortefio
gang. Id. at 484. The State also introduced substantial gang affiliation evidence, apart
from the improper booking statements. See id. at 488. The State introduced the clothes
the defendants were wearing (some of which included the color red, which is associated
with Nortefio gangs), certain tattoos that included gang symbols, and a photo from a
defendant's cell phone that derogatorily referenced the Surefio gang. Id. A witness
testified she knew two of the defendants were gang members in high school. Id. A police
officer testified he interviewed the three defendants after their arrest, and one of them
mentioned two gangs, although the exact nature of the question and answer was unclear.
Id.
The Deleon court held this evidence was insufficient to meet the State's burden of
proving harmless error. Id. at 488-89. The court reasoned that none of this untainted
evidence of gang involvement was as strong, direct, or persuasive as the defendants'
admissions during booking that they were gang members. Id. at 488. The court
16 No. 32867-8-III State v. Rodriguez
determined these admissions outweighed the State's untainted evidence. Id. at 489. The
court concluded it could not find "beyond a reasonable doubt that any reasonable jury
would have reached the same result if given only the untainted evidence." Id. The court
reversed the first degree assault convictions and remanded the case for a new trial
untainted with inadmissible evidence. Id.
In Mancilla, the State charged four defendants with drive-by shooting and first
degree assault for shooting at a house. Mancilla, 197 Wn. App. at 640. As in DeLeon,
the State introduced the defendants' booking statements acknowledging gang
membership. Id. However, unlike in DeLeon, the State presented evidence of the
defendants' own statements, apart from their booking statements, concerning their gang
affiliation. Id. at 641-42. Specifically, the State introduced a booking photo in which one
of the defendants displayed a gang related hand sign, which the court held was a
nonverbal admission of current gang membership. Id. The State also introduced
recorded jail phone calls in which two other defendants implicated themselves as gang
members. Id. at 642. The Mancilla court held that this independent evidence of admitted
gang affiliation rendered the Fifth Amendment violation harmless beyond a reasonable
doubt as to these three defendants. Id.
17 No. 32867-8-III State v. Rodriguez
However, with respect to the fourth defendant, the State did not present any
evidence of admitted gang affiliation other than his booking statements. Id. The only
evidence of his gang affiliation was photographs of his gang tattoos. Id. The Mancilla
court reasoned that under Deleon, evidence of gang tattoos, even if accompanied by
other indicia of gang membership, was insufficient to overcome the taint of an
inadmissible booking statement. Id. Accordingly, the Mancilla court reversed the fourth
defendant's conviction. Id. at 643.
We learn from Deleon and Mancilla that the strongest evidence of gang affiliation
comes from a defendant's own statements, and that such evidence will often be sufficient
to render constitutional error harmless beyond a reasonable doubt.
Here, apart from the improperly admitted booking statements, the State's evidence
at trial of Rodriguez's gang affiliation was that he was wearing a blue and white Los
Angeles Dodgers jersey and three pieces of blue jewelry. Without more, this would be
insufficient and a new trial would be required. However, the State's evidence also
included Rodriguez's jailhouse telephone call instructing his friend to make sure that
Cervantes and Arredondo knew if they testified they would get a beating. We conclude
that Rodriguez's own statements, apart from his booking statements, so strongly
18 No. 32867-8-III State v. Rodriguez
suggested his Surefio gang membership, that the improper admission of his booking
statements was harmless beyond a reasonable doubt. 3
C. UNPRESERVED ALLEGED LFO ERROR
Rodriguez argues the trial court erred when it ordered him to pay $7 60 in
discretionary LFOs. He argues the trial court did not inquire into his ability to pay, nor
did the State present any evidence regarding his ability to work, past income, current
debts, or financial resources. He requests a new sentencing hearing for inquiry into his
ability to pay.
RAP 2.5(a) provides that an "appellate court may refuse to review any claim of
error which was not raised in the trial court." For this reason, a defendant who does not
object to the imposition of discretionary LFOs at sentencing is not automatically entitled
to review. State v. Blazina, 182 Wn.2d 827, 832, 344 P.3d 680 (2015). Rodriguez asks
this court to accept discretionary review, which this court is entitled to do. See id. at 835.
3 This court asked both parties for additional briefing on whether the DNA evidence was sufficient to render the constitutional error harmless beyond a reasonable doubt. Although we ultimately focused on Rodriguez's own implied admission he was a gang member, the DNA evidence probably renders the constitutional error harmless. Here, the forensic scientist testified she closely inspected the gun and did not see any blood on the gun. She also testified that the substantial amount of Rodriguez's DNA on the gun was inconsistent with Rodriguez's theory that his DNA was transferred when his leg rested on the gun. But even more important, Rodriguez's theory does not account for the complete absence of any other person's DNA on the gun.
19 No. 32867-8-III State v. Rodriguez
An approach favored by this author is to consider the administrative burden and expense
of bringing a defendant to court for a new hearing, versus the likelihood that the
discretionary LFO result will change. State v. Arredondo, 190 Wn. App. 512, 538, 360
P.3d 920 (2015), ajf'd, _Wn.2d_, 394 P.3d 348 (2017). "An important consideration of
this analysis is the dollar amount of discretionary LFOs imposed by the sentencing court."
Id. In this case, the majority of these factors weigh against reviewing Rodriguez's
unpreserved LFO challenge.
The dollar amount of the discretionary LFOs the trial court imposed supports
granting review. The trial court imposed both mandatory and discretionary LFOs. The
mandatory LFOs included the $500 victim assessment, the $200 criminal filing fee, and
the $100 DNA collection fee. See RCW 7.68.035(l)(a); RCW 36.18.020(2)(h);
RCW 43.43.7541. These mandatory LFOs are required irrespective of Rodriguez's
ability to pay. State v. Lundy, 176 Wn. App. 96, 103, 308 P.3d 755 (2013). The
discretionary LFOs in this case were the $10 sheriffs service fee, the $250 jury demand
fee, 4 and the $500 fee for costs of incarceration, totaling $760. See RCW 10.01.160(2);
RCW 36.18.016(3)(b); RCW 9.94A.760(2).
4 This court has recently observed that the mandatory or discretionary nature of the $250 jury demand fee is unclear. State v. Clark, 195 Wn. App. 868, 872, 3 81 P .3d 198
20 No. 32867-8-III State v. Rodriguez
However, the second factor-the additional administrative expense of bringing
Rodriguez to court so the trial court could inquire into his current or likely future ability
to pay-weighs in favor of declining review. Here, remand is not required to address any
other error.
The final factor also weighs in favor of declining review-a new sentencing
hearing would not likely change the LFO result. Rodriguez testified at trial he had been
employed for five years at Washington Beef and was working for Amtech (a fiberglass
company) at the time of his arrest. He retained private trial counsel. He was 24 years old
at the time of sentencing, and the trial court found he was healthy and capable of earning
a minimal wage while incarcerated.
Considering the small likelihood that a new sentencing hearing would change the
LFO result and the administrative expense of holding a new sentencing hearing, we
decline to exercise our discretion under RAP 2.5(a) to review Rodriguez's unpreserved
LFO challenge.
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW (SAG)
A defendant is permitted to file a prose SAG in a criminal case on direct appeal.
RAP 10.lO(a). This statement is not required to cite authorities or to the record itself, but
(2016), remanded to trial court, 187 Wn.2d 1009, 388 P.3d 487 (2017). It is assumed
21 No. 32867-8-III State v. Rodriguez
must have sufficient specificity to inform the court of the "nature and occurrence" of
specified errors. RAP 10 .10(c). The SAG must not rely on matters outside the record.
State v. McFarland, 127 Wn.2d 322,338,899 P.2d 1251 (1995).
A. DEFENSE WITNESS ISSUES
Rodriguez argues he was deprived of a fair trial because his attorney never filed a
list of defense witnesses before trial. The defense is required to "disclose to the
prosecuting attorney ... the names and addresses of persons whom the defendant intends
to call as witnesses." CrR 4.7(b)(l). The reason for this rule is to ensure fairness to the
State, by preventing last-minute surprise and affording opportunity for effective cross-
examination. State v. Linden, 89 Wn. App. 184, 193,947 P.2d 1284 (1997) (quoting
State v. Dunivin, 65 Wn. App. 728, 733, 829 P.2d 799 (1992)). Rodriguez fails to explain
how his attorney's alleged violation of this rule deprived him of a fair trial. 5
Rodriguez also argues he was prevented from calling his girlfriend, Cristal
Valencia, as a witness. He claims the State's victim-witness advocate, Lisette Allan,
called Valencia and instructed her not to come to trial. However, there is no evidence of
this in the record. Thus, this court cannot consider this issue on direct review. The
here that this fee is discretionary. 5 Although the clerk's papers do not contain a defense witness list, defense counsel advised at trial that he filed one.
22 No. 32867-8-III State v. Rodriguez
appropriate means of litigating this issue is through a personal restraint petition. See
McFarland, 127 Wn.2d at 335.
Rodriguez also argues he did not receive a fair trial because Cervantes did not
testify as a witness. However, the State did not introduce any hearsay statements by
Cervantes, so Rodriguez was not deprived of his right to confrontation. In any event,
Rodriguez attempted to prevent Cervantes from testifying. He cannot now argue that this
deprived him of a fair trial.
B. ALLEGED JUROR BIAS
Rodriguez contends the trial court erred by failing to excuse a biased juror. He
argues a juror was biased because he or she worked for the city of Toppenish, knew all of
the State's witnesses, and also knew Arredondo.
Criminal defendants have a constitutional right to trial by an impartial jury. See
U.S. CONST. amend. VI; WASH. CONST. art. I,§ 22. A party claiming actual bias must
establish it by proof. State v. Noltie, 116 Wn.2d 831, 838, 809 P.2d 190 (1991). To
prevail, a party must show more than a possibility of prejudice. Id. at 840 (quoting 14
LEWIS ORLAND & KARL TEGLAND, WASH. PRACTICE: TRIAL PRACTICE § 203, at 331 (4th
ed. 1986).
23 No. 32867-8-III State v. Rodriguez
At the beginning of voir dire, the trial court recited the names on the State's
witness list to the venire. Venire juror 12 indicated she knew most of the officers who
worked for the Toppenish police department. Upon questioning, she stated that she
worked for the city of Toppenish, that she was only acquainted with the officers, and that
she did not have any contact with them outside of work. She stated knowing the officers
would not affect her ability to be fair and impartial.
The State's first witness was Arredondo. After he testified, venire juror 12
informed the bailiff, who informed the court, that she recognized Arredondo as a former
seasonal employee for the city of Toppenish. Upon questioning by the court, she stated
that the city had employed Arredondo a long time ago, and that recognizing him would
not affect her ability to be fair and impartial.
Although venire juror 12 worked for the city of Toppenish and recognized several
of the State's witnesses through her job, she stated she could still be fair. Rodriguez fails
to show more than a possibility of prejudice. Based on the record, there is insufficient
evidentiary support for his claim that venire juror 12 was actually biased.
C. TIME FOR TRIAL RULE
Rodriguez also contends the trial court "violated [his] rights by not going to trial
because of continuances." SAG at 2. Based on this statement, he appears to argue the
24 No. 32867-8-III State v. Rodriguez
trial court failed to bring him to trial within the time required under CrR 3.3. However,
he has generally failed to designate any clerk's papers or transcripts from before March
2014. By this point, the case was nearly two years old, due to Rodriguez's and the State's
requests for continuances. Without any record of the proceedings from the first two years
of the case, this court is unable to fully consider whether he was brought to trial within
the time required by CrR 3.3.
However, this court is able to consider whether the trial court abused its discretion
in granting continuances in the time period for which Rodriguez designated transcripts-
between March 2014 and September 2014.
Continuances under CrR 3.3(f) are excluded in computing the time for trial.
CrR 3.3(e)(3). The court may grant a continuance under this rule when
such continuance is required in the administration of justice and the defendant will not be prejudiced in the presentation of his or her defense. The motion must be made before the time for trial has expired. The court must state on the record or in writing the reasons for the continuance.
CrR 3.3(f)(2). A trial court has discretion to grant a continuance under CrR 3.3 and its
decision will not be disturbed absent a manifest abuse of discretion. State v. Torres, 111
Wn. App. 323, 330, 44 P.3d 903 (2002).
"Unavailability of a material prosecution witness is grounds to delay the trial for a
reasonable time." Id. at 329. For a court to grant a continuance on this basis, there must
25 No. 32867-8-III State v. Rodriguez
be a valid reason for the unavailability, the witness must become available within a
reasonable time, and there must not be substantial prejudice to the defendant. State v.
Nguyen, 68 Wn. App. 906, 914, 847 P.2d 936 (1993). The moving party must also have
exercised due diligence in subpoenaing the necessary witnesses. State v. Adamski, 111
Wn.2d 574, 579, 761 P.2d 621 (1988).
The trial court has discretion to grant a continuance under CrR 3.3(f) "to allow
defense counsel more time to prepare for trial, even over defendant's objection, to ensure
effective representation and a fair trial." State v. Williams, 104 Wn. App. 516, 523, 17
P.3d 648 (2001). Scheduled vacations of counsel and officers also justify continuances
under CrR 3.3(f). Torres, 111 Wn. App. at 331. As does accommodating an officer's
mandatory training. State v. Jones, 117 Wn. App. 721, 729, 72 P.3d 1110 (2003). The
court may also consider scheduling conflicts in determining whether a continuance is
warranted. State v. MacNeven, 173 Wn. App. 265,270,293 P.3d 1241 (2013).
The transcripts Rodriguez designated for review indicate the trial court granted
four CrR 3.3(f) continuances between April 2014 and when trial began in September
2014. 6 The trial court's first two continuances-on April 18 and June 20-were joint
6 The trial court reset the trial date within the existing time for trial period twice- on March 24 and August 8-but these were not continuances within the meaning of CrR 3.3(f).
26 No. 32867-8-III State v. Rodriguez
requests from the State and defense counsel and were over Rodriguez's objections. The
court granted the continuances on the grounds that ( 1) Detective Brownell and three other
officers on the State's witness list had training, (2) Detective Brownell was in trial on
another case, (3) several other officers had prescheduled vacation, and (4) defense
counsel had a two-day continuing legal education class, and also had scheduled vacation,
commitments as a judge pro tern, and needed time to finish the brief regarding
Rodriguez's booking statements to jail staff.
On July 16, the court granted a continuance, over the defense's objection, on the
grounds that the State had lost contact with both Arredondo and Cervantes, whom the
State had previously subpoenaed. The court had previously signed material witness
warrants, officers had been looking for them throughout the night, and United States
Marshals had joined the search. For these reasons, the State was confident Arredondo
and Cervantes would become available soon.
On August 22, the court granted a final continuance, over the defense's objection,
on the grounds that the State had just obtained and translated two new recorded jailhouse
telephone calls. Rodriguez had made these calls from other inmates' telephone accounts
and they revealed his attempts to tamper with the State's witnesses. The court granted the
continuance so the State could file witness tampering charges and seek to admit
27 No. 32867-8-III State v. Rodriguez
Cervantes's prior statements to police under the forfeiture by wrongdoing hearsay
exception.
For each continuance here, the trial court properly found the continuances were
required in the administration of justice. It also properly found Rodriguez would not be
prejudiced-defense counsel repeatedly stated the delays did not prejudice Rodriguez's
case in chief, given that his only witnesses were his friends and family members. The
record indicates all the motions for continuances were made before the time for trial had
expired. The trial court also made a record as to the reasons for the continuances. In light
of the trial court's compliance with CrR 3.3(f), the court did not abuse its discretion in
granting these four continuances.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
WE CONCUR: j
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